STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2693

)

CLYDE S. BOTNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 19, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tampa, Florida 32399-0792

For Respondent: Clyde S. Botner, pro se

4404 Devonshire Road

Tampa, Florida 33634 STATEMENT OF THE ISSUES

The issue is whether respondent's license as a registered specialty contractor should be disciplined for the reasons stated in the administrative complaint.

PRELIMINARY STATEMENT

By administrative complaint filed on January 17, 1989, petitioner, Department of Professional Regulation, Construction Industry Licensing Board, charged that respondent, Clyde S. Botner, licensed as a specialty contractor, had violated Subsections 489.129(1)(h) and (m), Florida Statutes (1987). More specifically, the complaint alleged that in connection with a contracting job undertaken in July 1987 in Hillsborough County, respondent failed to properly supervise the job and was guilty of financial mismanagement and misconduct as exhibited by his failure to satisfy a $1,263 judgment owed the customer.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on May 18, 1989 with a request that a hearing officer be assigned to conduct a formal

hearing. By notice of hearing dated May 25, 1989 the final hearing was scheduled on July 19, 1989 in Tampa, Florida.

At final hearing petitioner presented the testimony of Debra Jean Harris Tackett and offered petitioner's exhibits 1-5. All exhibits were received in evidence. Respondent testified on his own behalf and offered respondent's exhibits 1-3. All exhibits were received in evidence.

The transcript of hearing was filed on July 31, 1989. Proposed findings of fact and conclusion of law were filed by petitioner on August 4, 1989. 1/ A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Clyde S. Botner, was a registered specialty contractor having been issued license number RX 0043602 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). Respondent is now the owner of Days Aluminum Products (DAP), a construction firm located at 4404 Devonshire Road, Tampa, Florida, but was in the process of purchasing the business when the events herein occurred. He has been licensed by the State since June 29, 1983. Botner was and still is the only state licensed contractor with the firm.

   
   

2. Debra Tackett resides at 7302 Sequoia Drive, Temple Terrace, Florida. Tackett desired to have an aluminum carport added to her house and contacted DAP for the purpose of obtaining an estimate. Respondent visited Tackett's residence in July 1987 and gave an estimate of $7,088 to complete the job. Within a few days, another DAP representative, Scott Tarbox, met with Tackett and agreed to reduce the price to $6,000. After the contract changes were initialed by Tarbox, Tackett gave Tarbox a check for $1200 as a down payment on the work. The check was deposited to the account of DAP. The contract carries the signature of Botner as the authorized agent of DAP.

   
   

3. On or shortly after July 18, Botner made application for a building permit with local officials butt was unsuccessful since the proposed construction was three feet beyond the setback line. This meant the structure had to be moved back three feet or a variance obtained from local zoning officials. Because Tackett preferred not to modify her structure, she requested that respondent obtain a variance. By then, Botner had put up string lines, laid boards for pouring concrete and dug some trenches. The value of this work was less than $1200.

   
   

4. Although respondent now contends he had no authority or responsibility to do so, he agreed to make application for a variance by August 26 so that the matter could be taken before the local zoning board for final decision on September 17. However, he missed the August 26 filing deadline. Around September 15 Tackett learned that the application for a variance had not been timely filed and, in any event, it would probably be denied. Therefore, she decided "it was best to terminate" the contract. She also requested that Botner return her deposit. Although respondent promised to return the money on two occasions (September 18 and 22), he did not do so. When he did not meet the second deadline of September 22, she filed an action against Botner in small claims court the same date seeking to recover her $1200.

5. On September 29, 1987, or a week after the small claims court action had been filed, respondent purchased a cashier's check in the amount of $1264 and had an employee, Larry Blevins, carry the check to Tackett. However, before returning the deposit, Blevins asked that Tackett sign a "release" which forbade her from making any complaints against DAP. Tackett declined to sign the release and was accordingly not given her money.

   
   

6. By letter dated October 5, 1987 Tackett received an offer of $1263 from DAP's attorney but such payment was again conditioned upon her agreeing to "not register any complaint with any governmental or non-governmental agencies regarding (DAP)." She again declined the offer.

   
   

7. On January 5, 1988 Tackett obtained a judgment in the amount of $1263 plus interest against Clyde S. Botner d/b/a Days Aluminum Products. To date, Botner has paid only $100 of that judgment.

   
   

8. Botner conceded the judgment is still unpaid, except for one payment of

   $100, but contends Tackett has damaged his firm's reputation by filing complaints with the Better Business Bureau and the Board and obtaining a judgment in small claims court. He also contends that Tackett gave conflicting and untrue versions of what occurred to the Board investigator and the Better Business Bureau. He does not believe the judgment has anything to do with DAP or his license but instead is a purely civil matter. This is because he says the work in question could have been performed in Hillsborough County in 1987 without using his state license. Finally, he contends this proceeding is unjustified because he twice attempted to repay the money in 1987 but the customer refused his offers.

   
   

9. There was no evidence of any prior disciplinary action having been taken against respondent.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

11. Because respondent's professional license is at risk, petitioner is obligated to prove the allegations in the complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Respondent is charged with "financial mismanagement and/or misconduct in connection with this matter, attributable either to respondent directly, or to respondent's failure to properly supervise, in violation of Section 489.129(1)(h) and (m), as generally exhibited by, but not limited to, the following: the failure to pay said customer the amount of $1,263.00, as determined by a court judgement (sic)." (Paragraph 5, administrative complaint). The cited statutory provisions authorize disciplinary action against a licensee whenever the licensee is found guilty of:

    
    

    (h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    1. Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.

       
       

    2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.

       
       

    3. The contractor's job has been completed, and it is shown that the customer has had to pay more for the contracted job than the original contract price, as adjusted for subsequent change orders, unless such increase in cost was the result of circumstances beyond the control of the contractor, was the result of circumstances caused by the customer, or was otherwise permitted by the terms of the contract between the contractor and the customer.

    * * *

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

13. The undisputed evidence shows that respondent entered into a contract to perform certain work, accepted a $1200 down payment on the job, performed work of substantially less value than the $1200 and then refused to return the deposit when the contract was terminated unless the customer agreed not to make any written or verbal complaints against his firm. The only issue is whether this conduct equates to a violation of the cited statutes. Subsection 489.129(1)(h)2. comes the closest to being applicable and comes into play when a contractor abandons a job and "the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor ... refunds the excess funds within 30 days after the date the job is abandoned." In this case, respondent did not abandon the job. Rather, he was involuntarily terminated by the customer after she learned that a variance could not be obtained and was dissatisfied with respondent's gratuitous efforts to obtain the same. Since the statute in question is penal in nature and must be strictly construed in favor of the one against whom the penalty is imposed, see, e.g., Holmberg v. Department of Natural Resources, 503 So.2d 944 (Fla. 1st DCA 1987), it is concluded that subsection 489.129(1)(h) does not apply. The charge in Count I should accordingly be dismissed.

14. The final count alleges that respondent's conduct equates to fraud, deceit, gross negligence, incompetency or misconduct in the practice of contracting within the meaning of subsection 489.129(1)(m). In its proposed order, the Board concedes that the statutory elements of fraud, deceit, gross negligence and incompetency do not apply in this proceeding. It contends, however, that Botner committed misconduct in the practice of contracting by failing to complete the job, return the down payment, and satisfy the civil judgment. As noted earlier, Botner's failure to complete the job was attributable to the customer terminating him from the job. Therefore, the cited conduct would not trigger the provisions of the statute. Likewise, on the record made in this proceeding, Botner's failure to satisfy a civil judgment does not constitute misconduct in the practice of contracting. This is because the term "misconduct in the practice of contracting" is not defined by statute or rule, and assuming arguendo that the Board's interpretation of the law is valid, there was still no record foundation to justify the agency's contention that the cited conduct is proscribed by the law. 2/ See, e.g., Anheuser-Busch, Inc. v. Department of Business Regulation, 459 So.2d 384 (Fla. 1st DCA 1984). The same reasoning does not apply to the Board's final contention that Botner's refusal to return the unearned moneys to the customer after being terminated from the job is a violation of the law. Such conduct is "predictably objectionable," that is, a contractor should know that he is obligated to return unearned moneys to a customer, and by failing to do so, he is subject to being prosecuted for misconduct in the practice of contracting. Therefore, the final charge has been sustained.

    
    

15. Rule 21F-17.001, Florida Administrative Code (1987) provides suggested penalties to be imposed against a licensee whenever disciplinary action is warranted. For the first violation of subsection 489.129(1)(m), the rule suggests a penalty within the range of $250 to $750. In addition, rule 21F-

17.002 provides that certain aggravating and mitigating factors, if relevant, be taken into consideration in establishing an appropriate penalty. In this case, since Tackett is still owed more than $1100 by Botner, she has obviously suffered financial harm. Given this aggravating factor, the maximum suggested fine of $750 is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection

489.129(1)(m), Florida Statutes (1987) and that a fine in the amount of $750 be imposed. The other charge should be dismissed.

DONE AND ENTERED this 11th day of August, 1989 in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2693

Petitioner:

1-3. Covered in finding of fact 1.

1. Covered in finding of fact 2.

2. Covered in finding of fact 1.

3. Covered in finding of fact 2. 7-8. Covered in finding of fact 3.

9-11. Covered in finding of fact 4. 12-13. Covered in finding of fact 7.

1. Rejected as being irrelevant to the issues.

2. Covered in finding of fact 8.

COPIES FURNISHED:

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Mr. Clyde S. Botner 1989. 4404 Devonshire Road

Tampa, Florida 33634

Kenneth E. Easley, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Fred Seely, Executive Director Construction Industry licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 89-002693

Orders for Case No: 89-002693